A tale of three cases: reflections on rights protection

They also argued that the purpose of the Australian Security Organisation Act 1979 is such that ASIO never have to tell anybody anything if they don’t want to.

By a careful analysis of the rules which relate to discovery and the case law relating to public interest immunity, the Full Court said that the judge at first instance had got it right and ASIO should produce a list of relevant documents as they were ordered to do. The common law coped again although this is just one more step in the battle for openness and justice by these three plaintiffs.

In the third case, Hussain v Minister for Foreign Affairs [2008] a young Australian citizen, Syed Mustapha Hussain, won a scholarship to study in Medina in Saudi Arabia but, after a year of such studies, on his holidays back in Australia had his Australian passport cancelled such that he was unable to travel overseas (and continue his studies). The cancellation was on the basis of, you guessed it, an adverse security assessment by ASIO.

Mr Hussain sought to review the cancellation in Administrative Appeals Tribunal. The former Attorney-General, Mr Ruddock, issued certificates that prevented Mr Hussain or his lawyers having access to the material on which the adverse security assessment was made. Not surprisingly, not knowing the case against him, for reasons he is still unaware of, Mr Hussain lost his case in the Tribunal.

The issue in the Federal Court concerned the fact that the President of the Administrative Appeals Tribunal (and who sat on the case) is a Federal Court judge, one who exercises the judicial power of the Commonwealth. The Full Court of Justices Weinberg, Bennett and Edmonds asked themselves the question whether it was incompatible for a judicial officer to sit in a Tribunal where one side did not get to see the other side’s evidence; whether such a process involved acting on the “advice, wish or instruction” of the Executive; whether the task in the Tribunal really involved independence from the Executive. Perhaps surprisingly, they said “No problem: we do this sort of thing every day”.

Neither the common law nor Chapter III of the Constitution was able to ensure a right to a fair go in this case. In an era when the Munich Beer Festival is constitutionally unable to start without a generous sprinkling of Australian yobbos in attendance, one might think that the right to know why one is losing one’s right to travel overseas (and contest that reason) is a pretty fundamental right.

A Charter of Rights may not stop, in every case, the latest Phillip Ruddock from taking away a few more fundamental rights, especially, those of powerless minority groups or demonstrators like Scott Parkin who some politicians love to hate. It will ensure, however, that we have a decent debate about such proposals. It will ensure that the Parliament, if it really wants the Executive to take such steps, thinks long and hard about it before it authorises the Executive to do so.